Notice of Removal To Federal Court 5 14 CV 03084

Case5:14-cv-03084-HRL Document1 Filed07/08/14 Page1 of 6
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STRADLING YOCCA
CARLSON & RAUTH
LAWYERS
NEWPORT BEACH
JEFFREY A. DINKIN, SBN 111422
idinkin@sycr. com
ALLISON E. BURNS, SBN 198231
aburns@sycr. com
DAVID C. PALMER, SBN 251609
dpalmer@sycr. com
STRADLING YOCCA CARLSON & RAU1H
A Professional Corporation
800 Anacapa Street, Suite A
Santa Barbara, California 931 01
Telephone: (805) 730-6800
Facsimile: (805) 730-6801
Attorneys for Defendants
City of Carmel-by-the Sea; Jason Stilwell;
Susan Paul
Exempt from filing fee
Government Code 6103
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STEVEN MCINCHAK
Petitioner/Plaintiff,
v.
CITY OF CARMEL-BY-THE-SEA,
JASON STILWELL, CITY
ADMINISTRATOR OF THE CITY OF
CARMEL-BY-THE-SEA, SUSAN
PAUL, ADMINISTRATIVE
SERVICES DIRECTOR OF THE
CITY OF CARMEL-BY-THE-SEA;
and DOES 1 through 50, inclusive,
Defendants.
CASE NO.
Monterey County Superior Court
Case No. Ml28062
NOTICE OF REMOVAL TO
FEDERAL COURT UNDER 28
U.S.C. SECTIONS 1441(b) AND 1367
(FEDERAL QUESTION AND
SUPPLEMENTAL)
Action Filed: June 4, 2014
Discovery Cutoff: Not Set
Trial Date: Not Set
NOTICE OF REMOVAL
DOCSOC/1670471 vl/102910-0006
1 TO THE CLERK OF THE ABOVE-ENTITLED COURT:
2
3 PLEASE TAKE NOTICE that pursuant to 28 U.S.C. 1331, 1441 and
4 1446, Defendants City of Carmel-by-the-Sea; Jason Stilwell and Susan Paul, (the
5 "Defendants"), hereby remove the state court action described below to this Court.
6
7 1. On June 4, 2014, an action was commenced in the Superior Court of
8 the State of California for the County of Monterey entitled Steven Mclnchak v.
9 City of Carmel-by-the-Sea; Jason Stilwell, City Administrator of the City of
10 Carmel-by-the Sea; Susan Paul, Administrative Services Director of the City of
11 Carmel-by-the-Sea and does 1 through 50, inclusive, Case No. M128062. A true
12 and correct copy of the Summons, Complaint and the Superior Court's docket is
13 attached hereto as Exhibit "A."
14
15 2. Jurisdiction: This is a civil action of which this Court has original
16 jurisdiction under 28 U.S.C. 1331 and supplemental jurisdiction under 28 U.S.C.
17 1367(a), and is one which may be removed to this Court by Defendants pursuant
18 to the provisions of28 U.S.C. 144l(b) in that it is a civil action arising under the
19 Constitution, laws, or treaties of the United States and involves claims that are so
20 related to claims in the action within such original jurisdiction that they form part
21 of the same case or controversy under Article III of the United States Constitution.
22 The above Complaint in the above-referenced action alleges, among other things,
23 that Defendants' conduct is in violation of the laws and Constitution of the United
24 States.
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26 II
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28 II
STRADLING YOCCA
CARLSON & RAUTH
-1-
L.-'.WY.ERS
NEWl'ORT BE.\CII
DOCSOCII67047Ivl/l02910-0006
NOTICE OF REMOVAL
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STRADLING YOCCA
CARLSON & RAUTH
L.-1.\\'YERS
NEWPORT BE:\CII
3. Pursuant to 28 U.S.C. 1441(a), removal to the Northern District of
California is proper because said district embraces the place where the state court
action currently is pending.
4. Intradistrict Assignment: Pursuant to Local Rule 3-2( e), removal to
the San Jose Division of the Northern District of California is proper because said
division embraces the county where the state court action is pending and/or where
the civil action arose.
5. Pursuant to 28 U.S.C. 1446(d), written notice of the filing of this
Notice of Removal to Federal Court ("Notice of Removal") will be provided to all
adverse parties, and a copy will be filed in the appropriate state court.
6. Pursuant to 28 U.S.C. 1446(b), all named defendants in this case, in
both their individual and official capacities, to the extent both capacities are
alleged in the Complaint, hereby join in this Notice of RemovaL
7. In filing this Notice of Removal, Defendants preserve all of their
defenses, denials, and/or objections to the Complaint and each and every allegation
thereof.
II
II
II
II
-2-
NOTICE OF REMOVAL
DOCSOC/16704 71 vI 1102910-0006
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STRADLING YOCCA
CARLSON & RAUTH
LAWYERS
NE11'1'0RT BEACH
WHEREFORE, the above-described action now pending against Defendants
in the Superior Court of the State of California, County of Monterey, is properly
removed to this Court.
DATED: July 7, 2014
DOCSOC/16704 7l v 1/102910-0006
STRADLING YOCCA CARLSON &
RAUTH
A Profess
Attomeys for Defendants
City of Cannel-by-the Sea; Jason
Stilwell; Susan Paul
NOTICE OF REMOVAL
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00
STRADLING YOCCA
CARLSON & RAUTH
LAWYERS
NEWPORT BE,\CH
CERTIFICATE OF SERVICE
I certify that on July 8, 2014 the foregoing document was served on all parties
or their counsel of record through the CMIECF system if they are registered users
or, if they are not, I hereby certify that a true and correct copy was served in the
manner set forth below:
D BY EMAIL: by transmitting via electronic mail the document(s) listed
above to the email address( es) set forth below.
BY FACSIMILE: by transmitting via facsimile the document(s) listed
above to the facsimile number(s) set forth below. I certify that said
transmission was completed without error and that a report was generated by
facsimile machine (949) 725-4100 which confirms said transmission.
0 BY OVERNIGHT DELIVERY: by placing the document(s) listed above
in a sealed envelope with postage thereon fully prepaid, and delivering via
overnight courier and addressed as set forth below, respectively.
BY MAIL: by placing the document(s) listed above in a sealed envelope
with postage thereon fully prepaid, in the United States Mail in Newport
Beach, California, addressed as set forth below.
0 BY PERSONAL DELIVERY: by causing personal delivery by
Nationwide Legal, Inc. of the document(s) listed above to the person(s) at
the address( es) set forth below
SEE ATTACHED SERVICE LIST
I am readily familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the
U.S. Postal Service on that same day with postage thereon fully prepaid in the
ordinary course of business. I am aware that on motion of the party served, service
is presumed invalid if postal cancellation date or postage meter date is more than
one day after the date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
Executed on July 8, 2014, at Newport Beach, California.
Is/ Karen M. Hardy
Karen M. Hardy
CERTIFICATE OF SERVICE
DOCSOC/1671877vl/102910-0006
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')Q
STRADLING YOCCA
CARLSON & RAUTH
LAWYERS
NEWPORT BI3.-\CI1
SERVICE LIST
Steven Mclnchak v. City of Cannel-by-the-Sea, et
Monterey County Superior Court Case No. M128062
Michelle A. Welsh
Stoner, Welsh & Sclnnidt
413 Forest A venue
Pacific Grove, CA 93950-4201
Telephone: (831) 373-1993
Facsimile: (831) 373-1492
DOCSOC/16704 71 vl/1 02910-0006
Attorney for Plaintiff/Petitioner
Steven Mclnchak
SERVICE LIST
Case5:14-cv-03084-HRL Document1-1 Filed07/08/14 Page1 of 40
'
SUMMONS
(CITJJ.CION JUDICIJJ.L)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
City of Carmel-by-the-Sea, Jason Stilwell, City Administrator of the City of Carmel
-by-the-Sea, Susan Paul, Administrative Services Director of the City of Cannel-
by-the-Sea and Does 1 through 50, inclusive
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANT):
Steven Mcinchak
SUM-100
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are servE;d on you to file a written response at this court and have a copy
served on the plaintiff: A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/se/fhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken wttnout further warning from the court.
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you rnay want to call an attorney
referral service. If you cannot afford an altomey, you may be eligible for free legal services from a nonprOfit legal sel\lices program. You can locate
these nonprofit groups at the California Legal Services Web site (www.Jawhelpcalifomia.org), the California Cou'rts Online Self-Help Center
(www.courtinfo.ca.gov/se/fhefp), or by contacting your focal court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more In a civil case. The court's lien must be paid before the court will dismiss the case.
jAVISO! Lo han demandado. Sino responde dentro de 30 dias, fa corte puede decidir en su contra sin escuchar su version. Lea Ia informacion a
continuaci6n.
17ene 30 DiAS DE CALENDAR/0 despues de que te entreguen esta citaci6n y pape/es legales para presentar una respuesta por escrito en esla
corte y hacer que se ehlregue una co pia a/ demand ante. Una carta o una flam ada telef6nica no Ia protegen. Su respuesta par escrito tiene que eslar
en farmato legal correcto si desea que procesen su caso en Ja cotta. Es posible que haya un formutario que usted pueda usar para su respuesta.
Puede encontrar esfos formularfos de Ia corte y mas informacion en e/ Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en fa
bibffoteca de !eyes de su condado o en Ia corte que le que de mas cerca. Sino puede pager Ia cuota de presentaci6n, pida a/ secretarla de Ia corte
que fe de un formulario de exenci6n de pago de cuotas. Sino presenta su respuesta a tiempo, puede perder e/ casa par /ncumplimienta y Ia corte Je
podra quitar su sue/do, dinero y bienes sin mas advertencia.
Hay afro& requisites legates. Es recamendab/e que !fame a un abogado inmediatamente. Sino conooe a un abogado, puede /lamar a un seNicio de
remisi6n a abogados. Sino puede pagar a un abogado, es posible que cumpla con los requisites para obtener seNicios legales gratuitos de un
programa de seNicios legales sin tines de Iuera. PUede encontrar estes grupos sin fines de /ucro en e/ siiio web de California Legal SeNices,
(www.lawhelpoalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.oa.gov) o poniendose en contacto con fa corte o e/
cofegio de abogados locales. AVISO: Por ley, Ia corte Iiane derecho a reclamar las cuotas y los costas exentos por imponer un gravamen sabre
cualquier recuperaci6n de $10,000 6 mas de valor reciblda mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Ttene que
pagar el gravamen de Ia corte antes de que {a corte pueda desechar e/ caso.
Tile name and address of the court is: iM12so62!N<imerodetcaso):
(Ef nombre y direcci6n de Ia corte es):
Monterey County Superior Court
1200 Aguajito Road
Monterey, CA 93940
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:
(EI nombre, Ia direcci6n y el numero de te/etono def abogado del demandante, o del demandante que no tiene aboga.do, es):
Michelle A. Welsh, Esq. Stone; Welsh& Schmidt
413 EorestAvenue (831) .J73-1993
Pacific Grove, CA 93950
JlJ
M fl [, ?fJ41 TERESA A, R S ~ Clerk, by
(Fecha) ~ ~ '1,; g e:.<J 6"1 (Secretario)
DATE:
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).}
(Para prueba de entrega de esta citaci6n use ef formulario Proof of Service of Summons, (POS-01 0)).
[SEAL]
NOTICE TO THE PERSON SERVED: You are served
1. ~ as an individual defendant.
2. 0 as the person sued under the fictitious name of (specify):
3. 0 on behalf of (specify):
, Deputy
(Adjunto)
under: 0 CCP 416.10 (corporation)

CCP 416.20 (defunct corporation)
CCP 416.40 (association or partnership)
other (specify):

CCP 416.60 (minor)
CCP 416.70 (conservatee)
CCP 416.90 (authorized person)
4. D by personal delivery on (date):
SUll!lMONS
Page 1 of1
Code of Civil Procedure 412.20, 465
W!'I'W .col)f[info. ca.gov
Sro:NER, WEI.SB
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:MJCHELLE A. WELSH, State Bar No. 084127
STONER, WELSH & SCHMIDT
413 Forest Avenue
Pacific Grove, CA .93.950-4201
Telephone: (831) 373-1.9.93
Facsimile: (831) 373-14.92
Attorneys for Petitioner/Plaintiff
JUN 0 4 2014
TEl=:jES.A fj,. R!Si
CLERK OF THE SUPERIOR COURT
______ DEPUTY
CARMEN B. OROZCO
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY
Steven
Petitioner/Plaintiff.
v.
City of Carmel-by-the-Sea, Jason
Stilwell, City Administrator of the City
of Carmel-by-the-Sea, Sus: an Paul,
Administrative Services Director of the
City of Carmel-by-the-Sea and Does 1
tllrrough 50, inclusive,
) CaseNo. M 12806:2
)
) VERIFIED PETIDON FOR WRIT OF
) MANDAMUS (CODE OF CIVIL
) PROCEDURE SECTION .1085)
) AND COMPLAINT
) DECLARATORY JUDGMENT,
) BREACH OF CONTRACT,
) DEFAMATION AND INTENTIONAL
) AND NEGLIGENT INFLICTION OF
) EMOTIONAL DISTRESS
)
)
)_
Respondents/Defendants )

20
Petitioner/Plaintiff alleges:
21
PRELIMJNARY
22
Petitioner/Plaintiff Steven Mcinchak is a permanent employee of the City of Carmel-
. -
23
by-the-Sea. He has been employed by the City since 1997 as its Information Systems Network
24
Manager, responsible for managing and supervising the City's entire computer system.
25
Throughout hls employment) Petitioner/Plaintiff Mcinchak has perfmmed his duties in an
26
exemplary manner and with the highest professionalism and integrity. This action is brought
27
to enforce the mandatory requirements of the Ordinances and Personnel System of the City of
28
Cannel-by-the-Sea, the Constitution and laws of the State of California, and the mandatory
duties ofthe City Council, the City Administrator and the City Human Resources Director
AND SC:HMIDT
ATIORNEYSATlAW i
Mdncl.H!.k v. Ci_ty o.f Carmel-by-tbe-Sea, et at
Verified Petf_tlion fll}ir oflVIandar:n:l'iS aEr.d CeJ.Jn1p!ah1J
P?:.ge]. cti 19
l arising under those laws. In addition to the Petition for Writ of Mandate, Petitioner/Plaintiff
2 also seeks a Declaratory Judgment of his rights and the City's duties, and Petitioner/Plaintiff
3 states claims for violations of his constitutional rights, breach of contract and defamation of
4 character.
5 On June 5, 2013 the City of Carmel-by-the Sea unilaterally placed Petitioner/Plaintiff
6 on administrative leave from his position as Infonriation Systems Network Manager without
7 cause, notice or hearing. The City has kept Petitioner/Plaintiff on administrative leave,
8 preventing him from pe1fonning his job duties or returning to work since Juue 6, 2013, a
9 period of nearly 12 months. The City's actions violated, and continue to violate,
10 Petitioner/Plaintiff's rights to due process oflaw secured by Article 1, Section 2 ofthe
11 Constitution of the State of California by depriving him of lil:Jerty and property without cause,
12 notice and hearing. Further, the City's actions violated Petitioner/Plaintiffs right to privacy .
13 and impaired Petitionet!Pl<;lintiffs vested contractual rights in violation of the Constitution of
14 the State of California at Article 1, Section 1 andSection9. TI1e City has also violated its
15 own Ordinances.
16 Petitioner/Plaintiff seeks a Writ of Mandate compelling" the City of Carmel-by-the-Sea,
17 through its City Council, City Adnrinistrator and Administrative Syrvices Director, to reinstate
18 PetitionerJJ;>laintiff to bis position as Information Systems Network Manager forthwith.
19 Petitioner/Plaintiff :fu:ttber seeks to recover damages for all economic and generiu damages.
20 and losses he has incurred as a result of the continuing failure and refusal of the City of
21 Carmel-by-the-Sea, its City Council, City Administrator and Administrative Services Director,
22 to perfonn their mandatory legal duties in violation of Petitioner/Plaintiffs Constitutional and
23 legal rights.
24
PARTIES
25
1. Petitioner/Plaintiff Steven Mclnchak has been employed by Respondent/
26
Defendant City of Carmel-by-the-Sea as its Information Systems Network Manager from July
27
1, 1997 to the present. Petitioner/Plaintiffis a resident of Monterey County, California.
28
2. Respondent/Defendant City of Carmel-by-the-Sea (hereinafter City of Cannel)
STONER, WEI.SB
AND SCHMIDT
ATTORNEYSATU\.W
1\1cfuchak v. Ciily of Carme!-by-the-Sea, et a!..
Verified JP\oti<tRon f<Jlt WrH: 'fr!fl'/[ruu.:ll2!m!ls :JD.o::i Cmr,pbint
rage2 of!9
1 is, and at all times herein mentioned was, a General Law City duly organized and existing
2 under the laws of the State of Califomia and located in Monterey County, California.
3 3. Respondent/Defendant Jason Stilwell is, and at all relevant times was, the City
4 Administrator of the City of Cannel-by-the-Sea.
5 4. Respondent/Defendant Susan Paul is, and at all relevant times was, the
6. Administrative Services Director of the City of Cannel-by-the-Sea.
7 5. Petitioner/Plaintiff is unaware of the true names and capacities of Respondents/
8 Defendants designated as Does 1 through 50, inclusive. Petitioner/Plaintiff is informed and
9 believes that each of the Respondents/Defendants designated as Does 1 through 50 is
IO responsible forthe acts, omissions and wrongful conduct alleged herein. Petitioner/Plaintiff
11 will seek leave to amend the Petition/Complaint to state the true names and capacities of Does
12 1 through 50 when they are ascertained.
13 CO:M:M:ON FACTS
14 6. Petitioner/Plaintiff Steven Mcinchak was employed by the City of Carmel-by-
15 the-Sea on July 1, 1997 in the position ofinforri:lation Systems Network Manager. The
16. position was created by the City Council of the City of Cannel in l997 as a management
11 position and Petitioner/Plaintiff was the :first employee hired as Infmmation Systems Network
18 Manager. directly to the City Administratorunti12013 when he
19 was directed to report instead to the Adnrinistrative Services Director.
20 7. As Information Systems Network Manager, -Petitioner/Plaintiff was at all
21 relevant times responsible for managing the City's computer system development and
22 operations activities, providing professional assistance to City staff in information systems
23
development analysis, assistillg in management of all information systems activities
24
throughout the City by coordinating, planning and evaluating operations of the system,
25
including programming, computer operations, network administration and management of
26
equipment and software acquisitions, installation and repair. Petitioner/Plaintiff's duties
27
required him to serve as systems supervisor for managing the computer system including
28
network security, passwords, user configurations and changes to accommodate individual and
STONER, WELSH
Al.\'D SCHMIDT
ATTOmEYSATLAW
1

v. City ofCmrmel-by-the-Sea, et at
Verified Peiitian for 'iVJ:it of Mandamus all.d Comp]alin.t
3 0f 19
1
1 departmental needs. A tme and correct copy of the position description of the Information
2 Systems Netvvork Manager is attached Exhibit A and incorporated herein.
3 Petitioner/Plaintiff was required to be accessible to the City
1
its Administrators, its elected
4 offiCials and employees twenty-four hours a day, seven days a week to solve problems or
5 answer questions about the City's computer system.
6 8. At all times dming the course of his employment Petitioner/Plaintiff performed
7 his job duties in an exemplary manner and with the highest degree of professionalism and
8 integrity. All of his perso:tmel evaluations were satisfactory or outstanding and he received
9 positive comments and commendations for his job performance. Prior to May 30, 2013
10 Petitioner/Plaintiff had never received any notice of dissatisfaction with his job perfonnance
11 or disciplinary action of any kind during the previous sixteen years of his employment with
12 the City of Carmel.
13 9. Petitioner/Plaintiff is a long-term employee of the City of Carmel.
14 As such, Petitioner/Plaintiff accrued a property :interest in hls employment as a public
15 employee under the Constitution of the State of California, including the right to retain his
16 employment in the absence of just cause for termination. Nevertheless, on or about July 1,
17 2005 then City Administrator of the City of Cannel presented to Petitioner/Plaintiff a
18 document titled "Employment Agreement .City of Cannel-by-the-Sea Information Systems
19 Network Manager". That Employment Agreement purports to change Petitioner/Plaintiff's
20 employment status from a permanent to "at-will employee'' by the City
21 Administrator without cause or right of appeal .. Petitioner/Plaintiff was informed that he was
22 required to sign that Agreement as a condition of remaining employed by the City of Carmel.
23 Petitioner/Plaintiff received no notice, hearing, or any or other benefit in
24 connection with the Employment Agreement. Petitioner/Plaintiff was compelled to sign, and
2s did sign the Employment Agreement, with no notice or intent to waive his vested rights and
26
under threat that if he did JIOt sign the Employment Agreement his employment would be
27
immediately without cause. A true and correct copy of the Employment Agreement
28
is attached as Exhibit B a:Q.d 'incorporated herein.
STONER, WELSH
AND SCHJ\IJIDT
. ATTORNEYS AT LAW
MdiD!chak v. City of CmrmeK-by-the-Sea, et al.
crified Petitio11. fe::: 'Nr.ftt of and
1?age 4 cf
10. On June 5, 2013, without prior notice or warning, agents of the City ofCmmel
2 appeared at Petitioner/Plaintiff's home together with the Chief of Police and three law
3 enforcement officers from the City of Carmel and the Monterey County Sheriff's
4 who served upon Petitioner/Plaintiff a search warrant and proceeded to search his residence.
5 Agents for the City of Cannel, including Respondent/Defendant Susan Paul, entered
6 Petitioner/Plaintiff's home without his permission, with no legitimate need to be present, and
7 over his objections. Agents for the City of Cannel took possession of Petitioner/Plaintiff's
s home computer which he shared with his wife, Karen Mclnchak. Also taken were
9 Petitioner/Plaintiffs City laptop computer and multiple thumb drives and disks, including all
10 back-up disks. None of the property taken on June 5, 2013 has been returned to
11 Petitioner/Plaintiff and, to his knowledge, it remains in the possession of the City of Carmel.
1
2
11. Petitioner/Plaintiff, together with his wife, Karen Mcinchak, own and operate a
13 private business engaged in showing, breeding and sales of oriental shorthair cats. Karen
l4 Mcinchak is, and at all relevant times an internationally-recognized expert certified by
15
the International Cat Association to serve as a judge at cat shows, a business in which she is
16
regularly engaged. Karen Mcinchak is not now, and never has been, an employee of the City
17
of Carmel. Nevertheless, all of the business records, archived photographs, contacts and
. .
18
documents necessary for their cat -showing and breeding business were stored on
19
Petitioner/Plaintiff's home computer and taken from their home by agents of the City of
20
Carmel on June 5, 2013. The home computer and business documents were neverreturned,
21
C<!using irreparable damage to business and loss of archived photographs
22
and other busmess and personal data unrelated to the City of Cannel.
23
12. At the same time on June 5, 2013 agents of the City ofCannei including
24
Respondent/Defendant Susan Paul notiP,ed Petitioner/Plaintiff that he was placed on
25
administrative leave pendin? investigation of criniinal charges against him. No criminal or
26
other charges have ever been filed and, to Petitioner/Plaintiff's knowledge, neither the Cannel
27
Police Department nor any other law enforcement agency has requested the filing of any
28
criminal charges against Petitioner/Plaintiff, Steven Mcinchak.
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW!
Mcfudw.k v. City of Carmel-by-the-Sea, et al.
Verilled !'etitim:; foJr Vi?r.it of M:ai11d:am1..m ;omd ComphiR,;
"f1?
13. The allegations against Petitioner/Plaintiff by the City of Carlllel an:i false. P1ior
2 to fueJune 5, 2013 search of his home and seizure of his property, Petitioner/Plaintiff had no
3 knowledge or notice of any allegations against him by the City of Cannel. To date,
4 Petitioner/Plaintiff has never received notice of charges from the City of Crumel.
5 Nevertheless, under threat of immediate discharge for insubordination he was directed to
6 appear at a mandatory investigative interview conducted by an attomey representing the City
7 of Crumel any opportunity to review, respond to or to rebut charges, or to review any
8 evidence of any of the allegations of 1vrongdoing made by the City of Cannel against him
9 which have been widely published and republished throughout the community.
10 14.. Agents of the City of Cannel made the false allegations of criminal conduct and
11 work-related inisconduct against Petitioner/Plaintiff and disclosed confidential personnel
12 :informatioJ+ of and concerning him to other employees of the City of Carmel, to elected
13
officials, to news media, to reporters and to the general public. Such false a11d defamatory
I4 allegations, including allegations of criminal conduct, irreparably damaged
15
Petitioner/Plainti:f:f's reputation in his profession, his employment and his com111unity, violated
16
bis piivacy, impaired his contract of employment, and violated his liberty interest in his
17
employment, all in violation of his right to due process of law under the Constitution of the
18
State of California, and in violation of California law.
19
15. Since Petitioner/Plaintiff was placed o:ri involuntary leave of absence on June 5,
20
2013 to the present time Petitioner/Plaintiff has" been prevented from performing hls job
21
duties, retrieving hls personal property, or accessing his home and office computers.
22
Petitioner/Plaintiff has been prevented from pursuing his professional occupation and
23
livelihood, all without cause, notice or hearing and in violation of his constitutional rights to
.
24 due process oflaw, stigmatizing him to the point that he will be incapable of secur!llg
25
comparable future employment, all to his daiilage as alleged herein.
26
16. Petitioner/Plaintiff is 62 years of age. Petitioner/Plaintiffis informed and
27
believes and thereon alleges, that he is one of at least seven long-term employees over the age
28
of 40 years who have been terminated, placed on involuntary leave of absence pending an
STONER, WELSH II
AND SCHMIDT I
ATTORNEYS AT lAW I
Mdnchak v. Ciky of CarmrcHJiy-t!le-Sea, et al.
';'erLfied fu.Jt Co,n1plaint
investigation of allegations of placed Wlder disciplinary investigation by the City
2 of Carmel or forced to resign since on or about March 1, 2013. The City Administrator and
3 other agents of the City of Crumel have instituted a pattern and practice of discrimination
4 based on age causing a disparate impact on older employees which is continuing in violation
5 of California law. Petitioner/Plaintiff has also been subjected to dispruate treatment because oj
6 his age. He has never been convicted of any c1ime ofmQral turpitude. Yet, Petitioner/Plaintiff
7 is informed and believes that a female employee. who is more than twenty years younger than
8 himself was convicted of welfare fraud during her employment with the City of Carmel as its
9 Finance Specialist without suffering any discipline, discharge, involuntary leave of absence or
10 investigation of wrongdoing. On May 16,2014 Petitione1iPlaintifffiled a Complaint of
ll with the California Department of Fair Employment and Housing against the
12 City of Carmel-by-the-Sea and responsible individuals based upon discrintination against him
1
3
because of his age in violation of the California Fair Employment and Housing Act at
14
Government Code Section 12900 et seq., which remains under investigation.
1
5
Petitioner/Plaintiff will seek leave to amend the Complaint upon of Notice of Case
16
Closure and Right to Sue from the California Department of Fair Employment and Housing.
17
17. On, or about December 4, 2013 Petitioner/Plaintiff duly subnlitted a Notice of
18
Government Claim to the. City Clerk of_ the City of On Janmuy 9, 2014
19
Respondents/Defendants City of Carmel-by-the-Sea rejected Petitioner/Plaintiffs <:Jovernment
20
Claim. A copy of the Notice of Rejection of Claim is attached as Exhibit C and incorporated
21
herein. Petitioner/Plaintiff has exhausted, or attempted to exhaust, all
22
xemedies.
23
18. The actions and course of conduct of Respondents/Defendants and other agents
24
of the City of Carmel, as alleged herein, constitute arbitrary and capricious conduct within the
25
meaning of California Government Code Section 800, and intentional unlawful conduct in
26
yiolaiion of California and federal law, and the California and United States Constitutions.
27
Ill
28
Ill
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT rAW
Mcllil.cllak v. City of et al.
""if erilled PetlDolil f.n1
4
\l/rit of l\1a!Jldllii11US 2ncl
7 o:?

2
3
4
FIRST CAUSE OF ACTION
Petition for '\11/:rit of Mandamus:
Performance of Ministerial Duty (CCP Section 1085)
(Against An Respondents/Defendan-ts in their Official Capacities)
19. Petitioner/Plaintiff incorporates by reference each and every allegation of the

5
Common Facts in paragraphs 1 through 18 as though fully set forth.
6
20. At all times relevant herein Respondents/Defendants City of Cam1el and its
7
agents had a clear, present and ministerial duty under the Constihltion ofthe State of
.. - '
8
California to refrain froni deptiving Petiiioner/Plaintiffofhis liberty interest in his
. .
9 employment by threatening to institute action based on false charges that impair
lO Petitioner/Plaintiff's reputation for honesty and morality and his standing and associations in
11 the community. These false allegations are denied by Petitioner/Plairitiff. The false
l2 allegations were publicly disclosed by the City of Cannel, which stigmatized and officially
1
3 branded Petitioner/Plaintiff to the point that he is n9t free to seek other employment, to pursue
14 bis professional occupation, or even to volUnteer his services in the coinmunity.
15 21. At all times relevant herein Respondents/Defendants City of Cannel and its
16 agents had a ministerial duty under the Constitution of the State of California to retain .
17 Petitioner/Plaintiff in his employment with the City of Cannel in the absence of good cause to
18 tenninate or suspend hi:m."involuntarily, and to-refrain from depriving Petitioner/Plaintiff of
19 Iris property and his property interest in his public employment without notice, a 'Statement of
20 reasons, a copy o:(the charges and of all materials on which the proposed action is based, and
21 the right to a hearing within a reasonable time. A year or more is not a reasonable time.
22 22. At all times relevant herein Respondents/Defendants City of Ca1mel and its
23 agents had a clear, present and ministerial duty under the PersolUlel System Ordinances of the
24 City of Cannel-by-the-Sea at Section 2.52 .375 to comply with the procedures described in the
25 Personnel Syste:i:n Ordinance at_ the eailiest time practicable and to refrain fi:om placing
26 Petitioner/Plaintiff on involuntary administrative leave of absence without good cause to
27 believe that he is guilty of extreme conduct which warrants disciplinary action and imminently
28 threatens to dis111pt the City service. On June 5, 2013 agents of the City ofCam1el
STONER, WELSH
AND SCHMIDT
ATTORNEYSAfLAW
1
t:)
li'fdncha!c v. City of Carmel-by-the-Sea, d a!.
Verified Ji''etition fer '.V:rit of i\'Ia!nd::!imus mid Comphint
JP?.ge 3 of ):9
placed, and now continue to maintain, Petitioner/Plaintiff on administrative leave without
2 good cause, without investigation and without any evidence of grom1ds to believe that he is
3 guilty of conduct which warrants disciplinary action. A year or more is not the earliest
4 practicable time for the City to comply with its own Ordinances.
5 23. At all times relevant herein Respondents/Defendants City of Carmel and its
6 agents had a :ministerial duty under the Constitution of the State of Califomia to protect
7 Petitioner/Plaintiffs right to privacy, as specifically guaranteed by Axticle I Section 1 of the
8 Constitution of the State of Califomia.
9 24. At all relevant times the City of Cannel and its agents have been able to perform
10 their nrinisterial duty in accordance with the law. Petitioner/Plaintiff is infonned and believes,
11
and thereon alleges, that notwithstanding such ability and despite Petitioner/Plaintiffs
12
demand for performance, Respondents/Defendants have refused, and continued to refuse, to
13
reinstate Petitioner/Plaintiff or to pennit him to perform his duties as Information Systems
.
14
NetWork for the City of Cannel, resulting in the unlawful suspension from his
15 employment.
16
25. Petitioner/Plaintiff has exhausted or attempted to exhaust any and aU
17
. administrative remedies available to him. Petitioner/Plaintiff has no plain, speedy or adequate
18
remedy at law to red;ress the acts complained of herein, other than this Petition for Writ of
19
Mandate and other relief compelling Respondents/Defendants to reinstate Petitioner/Plaintiff
20
to his job duties as Infonnation Systems Manager, and to cease giving force and
21
effect to any policies, contracts, documents or actions which deprive Petitioner/Plaintiff of his
22
liberty and together with an award of damages and other relief to which
23
Petitioner/Plaintiff is entitled by law.
24
26. Petitioner/Plaintiff has incurred, and will continue to incur, attorneys fees and
25
costs. The acts of Respondents/Defendants City. of Carmel and its agents were discriminatOly,
26
arbitrary, capricious, taken in bad faith and contrary to the public interest. Petitioner/Plaintiff
27
is entitled to recover attomeys fees and costs under Governm:ent Code Section 800, Code. of
28
l
STONER, WELSH I
AND SCHJ\1IDT
ATTORi\'EYSATIAW
Civil Procedure Section 1021.5 and other statutory or contractual basis.
Mcllichak v. City of C21nneH-by-the-l:ka, et at
veJ.dJiedl2?-etitf.on for and
l?&ge. gt ::rf 19-
2
3
4
5
6
7
-wHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
SECOND CAUSE OF ACTION
Petition For 'Vrit of Mandai-.e: Abuse of Discretion
(Against All Respondents/Defendants in their Official Capacities)
27. Petitioner/Plaintiff incorporates by reference each and every allegation
contained in paragraphs 1 through 26 as though fully set forth.
28. To the extent Respondents/Defendants retained any discretion concerning
Petitioner/Plaintiffs employment, abused that discretion .by the
8
actions complained of herein, including but not limited to pla!)ing and maintaining
9
Petitioner/Plaintiff on involuntary leave of absence for approximately one year or more
10
without cause, notice or hearing, making false and defamatory allegations of and concerning
11
.Petitioner/Plaintiff, confiscating Petitioner/Plaintiff's property, discriminating against
12
Petitioner/Plaintiff because of his age and depriving Petitioner/Plaintiff ofhls liberty interest
13
in his employment, as alleged herein. The actions of the City of Cannel and its agents were
14
arbitrary, capricious, unreasonable and/or a prejudicial of discretion.
15
16
17
18
19
20
21
22
Respondents/Defendants' abU;se of discretion has deprived Petitioner/Plaintiff of his
employment, his reputation and his future means of livelihood.
WHEREFORE, Petitioner/Plaintiff prays judgment as hereinafter set forth.
TEllRD CAUSE OF ACTION
Breach of Written Contract of Employment
(Against Respondent/Defendant Employer Only)
23
24
30. Pmsuant to the Employment Agreement, Respondents/Defetidants City of
25
Carmel agreed that City of Cannel could tenninate Petitioner/Plaintiff's employment for
26
cause without his consent only in the event that Petitioner/Plaintiff is convicted of a felony or
27
other crime involving moral turpitude or any offense involving a violation of his official
28
duties or if it is determined by the City Administrator that Petitioner/Plaintiff misappropriated
STONER, WELSH
AND SCHIVITDT
ATfORNEYSATLAW tl
Me!ncl:utk v. C.irty of CanJ;lel-by-the-Sea, et aL
. \l,e;ti!1ed for '.1f;
1
rit <LflVKan.,,diaRlliHlS anif C4J.mphdnt
f's:ge 19'
1 public funds, comrillngled public fbnds with personal funds, engaged in willful corrupt
2 conduct in office, or conducted himself :in a manner to be detenllined as willful conduct that
3 constitutes misconduct according to the City's personnel rules. Petitioner/Plaintiffhas not
4 engaged in any such conduct, nor has he been charged or convicted of any crime, nor has the
5 City given notice or produced any evidence of such conduct.
6 31. Respondent/Defendant City of Carmel breached the Employment Agreement by
7 wrongfully placing and maintaining Petitioner/Plaintiff on involuntary leave of absence since
8 June 5, 2013, by making false charges against biro, by failing to notify him of charges against
9 him and by failing to conduct or: complete an investigation of its charges against
10 Petitioner/Plaintiff in a timely manner, by wrongfully failing and refusing to reinstate
11 Petitioner/Plaintiffto his employment as Information Systems Network Manager, and by
12
impairing Petitioner/Plaintiff's contract, as alleged herein.
13
32. As a direct and proXimate result of Respondent/Defendant's breach and
14
impahment of contract, Petitioner/Plaintiff has suffere9. and continues to suffer substantial
15
. losses in earnings, future earnings and employment benefits, all to Petitioner/Plaintiffs
16
damage in a sum not yet ascertained. Petitio:q.er/Plaintiff will seek leave to amend this
,
17
complaint to state the ammmt when jt is ascertained, or according to proof at trial.
18
19
20
21
22
23
24
25
26
27
FOURTH CAUSE OF ACTION
Defamation
(Against All Respondents/Defendants)
34. Petitioner/Plaintiff is informed and believes that Respondents!befendants, and
each of them, by the acts alleged herein, conspired to and did negligently, recklessly and
intentionally cause excessive and unsolicited mtemal and external publications of defamation
of and concerning Petitioner/Plaintiff to third persons and to the community. These false and
defamat01y statements included express and implied accusations that Petitioner/Plaintiff,
28
1 committed crimes, that he violated City policies,. that he a poor that heM
STONER, WELSH h'l:cfuchak v. Cu:-_y m Carmel-!Jy-tb.e-c:>r:a, e6: al.
AND SCHMIDT t' Verified I'etiti()ll fGl" Wlfit af fd2i1d:?m\].S 8T1Iii Comp Raint
ATTORNEYS AT LAW Pa.ge H uJ
1 deserved disciplinmy aci.ion, that he was incompetent, and that he was dishonest. All of these
2 statements are false.
3 35. The precise dates of these publications are not known to Petitioner/Plaintiff, but
4 were discovered within the past year. The_publications were false. Publication by
s Respondents/Defendants was outrageous, negligent, reckless, intentional and malicious.
6 Petitioner/Plaintiff is informed and believes that the intentional publications by
7 Respondents/Defendants, and each of them, were and continue to be foreseeably published
. .
s and republished by Defendants/Respondents, their agents and employees, recipients, news
9 media and others in the community. Petitioner/Plaintiff hereby seeks damages for all these
10 publications and all foreseeable re-publications discovered to the time of triaL
11 36. At all times relevant, Respondents/Defendants, and each of them, conspired to
1
2 and did negligently and intentionally cause excessive and unsolicited publication of
1
3
defamation of and concerning Petitioner/Plaintiff to third persons who h(l.d no need or desire
I4 to know. Those third persoris to whom Respondents/Defendants published this defamation are
15
believed to include, but are not limited to, other agents and employees ofthe CityofCarinel
16
and persons in the co:mlnunity, all of whom are known to defendants, but unknown at this time
l7 to Petitioner/Plaintiff.
18
37. The defamat01y publications consisted of oral and written, knowingly false and
19
communications, tending directly to injure Petitioner/Plaintiff, bis employment,
20
his personal business and his reputation. These publications included false and
21
defamatory statements in violation of California Civil Code Sectiqn45 and 46 (1), (3) and (5)
22
by expressly and impliedly asserting that Petitioner/Plaintiff should be charged with a crime,
23
that Petitionyr/Plaintiff engaged in violations of policy, was incompetent, a poor performer
24
and other allegations as alleged above, all of which directly injure Petitioner/Plaintiff in
respect to his profession, trade and business, imputing to him general disqualification and
25
26
other allegations having a natural tendency to injure Petitioner/Pla:illtiff in his employment,
27
profession and business. The statements of and conceming Petitioner/Plaintiff are defamatory
28
per se.
STONER, WELSH
AND SCI-JMIDT
ATTOlli'!EYSATLAW;
l
Ivfcfuchak v. City of Carmed-hy-ili.e-Sea, eli: al.
'Verified J?eth:ian fnr \7r;
7
.rrii :J!f .IV1al1ldam(!.S L'ld rCom.pRzjlJit
1C1Lt;6 12 e;;f
38. Petitioner/Plaintiff is informed and believes that these false and defamatory per
2 se statements will continue to be published by Respondent/Defendants, and each of them, and
3 will foreseeably be republished by the re.cipients, all to the ongoing hann and injury to
4 Petitioner/Plaintiffs employment, business, professional and personal reputations.
5 Petitioner/Plaintiff also seeks redress in this action for all foreseeable re-publications,
6 including his own compelled self publication ofthese defamatory statements.
7 39. None of Respondents/Defendants' defamatmy publications about
8 Petitioner/Plaintiff are true.
9 40. The defamatory meaning of all of the false and defamatory statements and the
10 reference to Petitioner/Plaintiff were understood by those third person recipients and other
11 members ofthe community, whose identities are known to Respondents/Defendants, but
12
unknown to Petitioner/Plaintiff at this time. The defamatmy statements were understood as
13
assertions of fact, and not as opinion.
14
41. None of the false defamatory per se pl,lblications as set forth herein were
15
pdvileged. Any alleged conditional privilege was abused because Respondent/Defendants
16
negligently, recklessly and intentiona11y published defamatory statements in a manner
17
constituting malice since the publications, and each of them were made with hatred, ill. will,
18
and an intent to vex, harass, annoy and injure Petitioner/Plaintiff, to justify the illegal actions
19
of Respondents/Defendants and to cause further damage to Petitioner/Plaintiff's professional
20
and personal reputation, to cause him to be and to justify his firing.
21
42. Each of the defamat01y publications by Respondent/Defyndants, and each of
22
them, were made with knowledge that no investigation or evidence supported the
23
unsubstantiated and obviously false statements. published the
24
statements knowing them to be false, and were negligent to such a
25
degree as to be reckless. Respondents/Defendants had no reasonable basis to believe the
26
statements to be true, they in fact knew the statements to be false, and they published them to
27
individuals with 110 need to know. No privilege existed to protect any of the
28
Respondents/Defendants from liability for the false and defamatmy publications andre-
STONER, WEISH
AND SCI-llvHDT
ij
ATTORNEYS AT LAW r-
.1
Mcinchak Y. City of Carmel-by-the-Sea, eta!.
1! ernfier[] p,,2[ititrn fur tJf 1Vi.3Dtd2ITI:liS Complafat
13 of
I publications.
2 43. As a proximate result of the publication and re-publication of defamatory
3 statements by Respondents/Defendants, and each of them, Petitioner/Plaintiff has suffered
4 injmy to his business and professional reputation, and has suffered embarrassment, retaliation,
5 severe emotional distress, shunning, anguish, fear, loss of employment and employability, and
6 significant economic loss, including loss of past and future wages, loss of health. insurance
7 and other benefits, all to Petitioner!P1aintif's economic, emotional and general damage in an
8 according to proof at trial.
9 44. Respondents/Defendants, and each of them, committed the acts alleged herein
10 recklessly, fraudulently and oppressively, with the wrongful intention of injuring
11
Petitioner/Plaintiff, and .for the .it"Uproper and evil motive amounting to malice, as described
12
above. Respondents/Defendants' conduct abused and/or prevented the existence of any
13
conditional privilege, and was done with reckless and conscious disregard of
14
Petitioner/Plaintiffs rights. AU actions of Respondents/Defendants and agents and employees
15
of the City of Carmel were known, ratified and approved by Respondents/Defendants, and
16
each offuem. Petitioner/Plaintiff is entitled to recover punitive and exemplary damages from
17
individual Respondents/Defendants Stilwell, Paul and Does one-through 50, and each of them,
18
in an amount based on their wealth and ability to pay, according to proof at trial.
19
20
21-
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT
.NrTORNEYS ATIAW!
FIFTH CAUSE OF ACTION
Intentional Infliction of Emotional Distress
(Against All Respondents/Defendants)
contained in.paragraphs 1 through 44 as though fully set forth.
. 46. The conduct alleged above was extreme and outrageous and constituted an
abuse of the authority and position of Respondents/Defendants, and each offuem. In addition,
. .
on or about June 5, 2013 agents of Respondents/Defendants City of Carmel, including
Respondent/Defendant Susan Paul, entered Petitioner/Plaintiffs home, refused to leave, and
par!.icipated in confiscating Petitioner/Plaintiff's property. In doing so Respondents/
Mdncbak y, City of Carmel-l'ily-t!J.e-Sea, et at.
.Petftinn lfor Vlrit of J:/Caxv12,IL-n.tlla 2J:Ild Cc-r&p.I.afnt
14 l9'
1 Defendants acted outside of the course and scope of their employment with the City of
2 Cannel. Respondents/Defendants' conduct is intended to cause severe emotional distress, or
3 was done in conscious disregard of the possibility of causing distress to Petitioner/Plaintiff.
4 Respondents/Defendants' conduct exceeded the inherent risks of ell).ployment and is not the
s sort of conduct normally expected to occur in the workplace.
6 47. Respondents/Defendants, and each of them, abused their positions of authority
. .
7 toward Petitioner/Plaintiff, and engaged in conduct intended to humiliate and demean
s Petitioner/Plaintiff and to convey the message that Petitioner/Plaintiff was powerless to
9 defend his rights.
10 48. Respondents/Defendants' conduct as alleged above did, in fact, cause
. .
11
Petitioner/Plaintiff to suffer emotional distress. As a proximate result of
1
2
Respondents/Defendants' conduct, Petitioner/Plaintiff suffered embarrassment, anxiety,
13
humiliation and emotional distress. Petitioner/Plaintiff will continue to suffer emotional
14
distress in the :future, causing physical and emotional injury and damages, as alleged above.
15
16
17
18
19
20
21
22
SIXTH CAUSE OF ACTION
. Negligent Infliction of Emotlonal Distress
(Against :All Respondents/Defendants)
49. Petitioner/Plaintiff incorporates }Jy reference each and every allegation
50. Respondents/Defendants, and each ofthem, owed a duty of care to
Petitioner/Plaintiff as an employee of the City of Crumel to provide Petitioner/Plaintiff a
workplace free from unfair treatment, discrimination, harassment, retaliation, defamation and
23
24
25
26
27
28
STONER, WEI.Sl:r
AND ScHMIDT II
ATTOR:NEYSATLAW il
abuse of Respondents/Defendants' positions of authority toward him. Respondents/
Defendant's conduct exceeded the inherent risks of employment and not the sort of
conduct normally expected to occur in the workplace. If the conduct of Respondents/ .
Defendants, and each of them, as alleged above, and their agents and employees was not
intentional, it was negligent and Petitioner/Plaintiff is thereby entitled to general damages for
. .
the negligent infliction of emotional distress.
lVIcfiD.chak v. City of Carmel.-!Jy-H!.e-Sea, et at
1
lr;Jti .. Ced fot: '7lrit of IVfand&lJJ,lt& and
J?:8 ge.15 of 19
1 5 I. Respondents/Defendants, and each of them, knew, or should have known, that
2 their conduct would cause Petitioner/Plaintiff extreme emotional distress. As a proximate
3 result of Respondents/Defendants' negligent conduct, Petitioner/Plaintiff suffered and will
4 continue to suffer extreme embarrassment, mental anguish and emotional
5 distress, causmg injury and damages as alleged above.
6
7
8
9
SEVENTH CAUSE OF ACTION
Declaratory Relief
(Against All Respondents/Defendants in their Official Capacities)
52. Petitioner/Plaintiff incorporates by reference each every allegation
10
11
53. California Code of Civil Procedure Section 1060 authorizes this court to grant
12
any person interested under a written instrument or contract to bring an action in Superior
13
Court for declaration of his rights or duties, and to seek other relief. There is an actual and
14
present controversy between Petitioner/Plaintiff Steven Mcinchak and Respondents/
15
Defendants City of Carmel, and its agents, which affects the rights and obligations of
16 Petitioner/Plaintiff.
17
54. Petitionei!Plaintiff contends that Respondents/Defendants, and each of them,
18 breached his contract of employment, violated their legal and constitutional duties, and
- .
19 engaged in unlawful and conduct which defamed Petitioner/Plaintiff and
20 irreparably damaged his reputation, his employment, and deplivedlrim of his liberty.
21 Petitioner/Plaintiff further contends that the acts of Respondents/Defendants were
22 discriminatory because of his age and violated his right to due process secured by the
23 California_ Constitution by placing and maintaining Petitioner/Plaintiff on involuntary leave of
24 absence without cause, notice or hearing, and that Respondents/Defendants' conduct also
25 resulted in an unconstitutional impairment of Petitioner/Plaintiff's contract of employment.
26 Respondents/Defendants, and each of them, deny these contentions.
27 55. Petitioner/Plaintiff requests the court to declare the rights and duties of the
28 parties in this action, and specifically to declare that Petitioner/Plaintiff has the right to
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAv.r :.,
l\1cinchak v. Cii:y of Carmel-by-the-Ses., et al.
"i;lerried. fDl"' VVrft CoBplafuft:
Page 15 ,Gf 19
reinstatement as the Information Systems Network Manager for the City of Carmel pursuant
2 to his contract of employment and pursuant to the Constitution and laws of the State of
3 California, together with all damages proximately caused by Respondents/Defendants'
4 conduct as alleged herein.
s WHEREFORE, Petitioner/Plaintiff prays judgment as follows:
6 PRAYERFORRELIEF
7 Petitioner/Plaintiff prays judgment as follows:
8
1.
For a Writ of Mandate cor.npell:ing Respondents/Defendants City of Carmel and
9
each of them, their agents and employees, and all persons acting under them or on their behalf
1 o to do the following:
11
A.
Reinstate Petitioner/Plaintiff to his employment with the City of Crun1el
1
2
as Infonnation SystemsNetworkManager;
13
B.
Cease giving force and effect to any contract, rule, policy or other
14
documents or taking any actions which dep1ive Petitioner/Plaintiff of his liberty or property or
1
s Ius rightto due process oflaw;
.
16
C. Return to Petit1oner/Plaintiffpossession all property.owned by him
17
and/or his family which is in the possession of the City of Carmel, its Administrators, agents
18
or anyone acting on their behalf;
19
2. For a money Judgment for loss of employability, mental pain and anguish and
20
en10tional distress according to proof;
21
3.
For general, presumed and special damages based upon damage to
22
Petitioner/Pla:intiff's personal reputation:, his professional reputation, and his business;
23
4.
For economic damages, including compensatory damages for lost past and
24
future wages and employment benefits, and any other economic injuiy according to proof;
25
5.
For an award. of punitive damages against any and/or all individual
26

27
28
STONER, WELSH
AND SCHMIDT
ATTORNEYS AT LAW ,!
6.
7.
For-reasonable attorneys fees .under any applicable statutory or contractual basis;
For an award of:i:Iiterest,.including prejudgment interest, at the legal rate;
lVl:cinchak v. City of Carmel-by-the-Sea, et al.
""-/erified Pefit!on for V\
1
rit .and
JEr-"ge 17 c,f 19
l
2
8.
9.
For costs of suit; and
For such other and further relief as the court deems proper.
3 JURY TR.lAL DEMANDED
4 Plaintiff demands trial of all issues by jury.-
5
6 Dated: June 3, 2014
7
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STONER, WELSH
AND SCHMIDT I
ATTORNEYS AT LAw I
STONER, WELSH & SCHMIDT
MICHELLE A. WELSH
Attorneys for Petitioner/Plaintiff,
Steven Mcinchak
Mc!nclhak v. City of Carmel-by-the-Sea, et al.
Verified Petition for Wr)t of Momd2mus and Compl2iint
a g ~ ~ IB of I9 1
. !
2
3
4
5
VERIFICATION BY PARTY
(Code of Civil Procedure section 2015.5)
STATE OF CALIFORNIA, COUNTY OF MONTEREY
6 I am the Petitioner/Plaintiff in the above entitled action or proceeding. I have read the
1 foregoing VERIFIED PETITION FOR WRIT OF MANDAMUS (CODE OF CML
s PROCEDURE SECTION 1 085) AND COMPLAINT FOR DECLARATORY JUDGMENT,
9 BREACH OF CONTRACT, DEFAMATION.AND INTENTIONAL AND NEGLIGENT
10
INFLICTION OF EMOTIONAL DISTRESS and know the contents thereof, and I certify that
11
the same is true of my own knowledge, except as to those matters which are therein stated
12
upon my information or belief, and as to those matters I believe it to be true.
l3
I declare under penalty of peljury under the laws of the State of California that the
14
foregoing is true and conect.
15
16
17
'18
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23
24
25
26
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SrmmR, WELSH
AND SCHMIDT
ATTORNEYS AT LAW .I
Executed on_J;_'l.-1._..-ve..- ___ "1 _ _, 20JI.4, at Pacific Grove, California.
Steven Mcinchak
P etitio:n er /Plain tiff
Mc!ndwk v. City of Cannel-loy-the-Sea, et :o>l.
Verified Petitioll for Vhit and Compl::.int
19 of 19
CITY OF CA_RN[EL-.llY-TI-IE-SEA
INFORlVlA'"fJ.ON SYSTEMS/NETWORK MANAGER
Definition
Under adininistrative direction, manage the City computer system development and
operations activities; provide professional assistance to City staff in ]nfonnation systems
development analysis. Assist in management of all information system activities throughout
t11e City by coordinatDJg,plann:in.g, and evaluating operation of the system, to include systems
anaJysis, progra:mmjng, computer operations, network administtatiM and management, and
equipment and software acquisitioru, a11d repak
SupelrVision Received And Exercised
The Assistant City Admittistrato:r or hjs/her designee provides supervision.
Responsibilities include direct supen.riSion of any clerical positions assigned to help on an as
needed basis. This position will also coordinate technology tasks with the Library's
Automated Systyms i echnidan.
Examples Of:Duties
..
Design> instalJ, custonri.ze, document and maintain all hardware a:nd software.
Provide a point-of-contact for vendor support to departments. Maintain liaison with
equipment manufacturers and vendors to ensure satisfactory support,
and provide direct technical and administrative supportforthe oper.atkm of the area
Novell networks Citywide.
Receive. and prioritize requests for computer application deveJopment and assistance and
oversee the implementation process.
Resolve service complaints and implement corrective action on a timely basis. Repair or
retutn defective hardwate/softwar.e or coordination with vendors for replacement of defective
equipment/sof.twate.
Evqluate and reconunend software for purchase and/or programmers who provide services to
the City.
Cjly of Cannel-hy-tbe-Sea
Jpfurmation System,/Network M anagcr (continued)
Examples Of Duties (continued)
Senre as liaison between the City and outside agencies in all matters pertaining to
information systems incinding database administration, computer operating systems,
networks, and Geo-graphical 'lnfonnation Systems.
Serve as system supervisor for managing the computer system including network security,
passwords> new user configurations, and clmnges to accommodate individual and
departmenta1 needs.
Develops, recomt11.ends,justifies a..1.d monitors the annupl budget f9tthe ciiywide infomiation
program.
Drafts, recomme;nds, and implements policies and p1ocedures r1ated to tb,e use .of the
citywide info:rmati_on system.
Insures proper maintenance, and servicing of equipment.
. AB time pem:llts :rod as prioritized by management develops and programs softw.are systems
for <:;:ity and departm6nta1 applications and ?vetsees implementation of these programs.
Provide 24 hour support to emergency services (Police and Fire) con1puter operations with
tidle1y response (preferably 1 hom). Assist in coordination of use ofthe Computer System in
_the event of an emergency ahd develop disaster preparedness as they relate to the
computer system,
Maintains and t."!Pdates detailed citywide computer inventory.
Confers with users to identifY training needs and coordina.tes ttaining schedule(s). May
conduct traiping as needs are determined.
Serve. as. Chairperson for Citywide computer group,
. Keeps infonued qevelopments in computer technology and techhiques affecting_
City operat;ions and distribute pertinent information to departments and users.
Attends outside organization meetings and tr.auling seniinars as related to qtyneeds.
Examples Of Dn:ties (continued)
2
Ci-ty of Carn1e)-hy-the-Sea
Information Sy>JemsNctwork Managtr (continued)
Provide monthly written and/or oral reports to management concerning the status of the
computer system, overall system performance, and status of cwrent computer projects.
Maintai1)s avaiJability via phone. and pager. Makes anangements fDr computer system
coverage when unavailable, i.e. vacations, seminars.
Maintains .accurate and complete records.
Other Job Related Duties
Perform related duties and responsibilities as !equired.
Job Related And. Essential Qualifications
,Knowledge of:
Novell NetWare operating systems, architecture, and topologies.
LocaJ and Wide Atea networking systems design, integration and management
Ethernet. ARCNet and X.25 protocols,
Microcomputer hardware troubleshooting, maintenance and network integration.
Microcomputer co!,llmunicatipns including Bulletin Board Systems, Internet
connectivity and TC'P/IP coll11nunications pro.tocols.
MicroSoft Windows)nstaHation, trouble shooting on a 'Network-
WordPerfeet maintenance and trouble shooting on a Wide.Atea Network
Micmsoftapp!ications i.e., Office, Access, Excel; Presentations, Project, and other software
applications whlc.h may be installed on a Wide Area Network.
Various progri11U1IIing languages, :including Basic and PVX.
Municipal financial systems a11d budget preparatkm.
f\bility to:
Trouble shoot errors and quickly identifY the source as bemg Network, DOS, application or
3
C)ly of CarmeJ..JJ:y-tbc-Sea
Sysrems/NetWD!k Mllnagct (continued)
hardware.
Design, write, and debug computer programs in a variety of progrm:urning languages and
database systems.
Manage multiple priorities.
Communicate effectlve1y with users who possess a wideiy djverse experience level in all
matters of computer automation.
Communicate effectively .in written documents and orally with city staff, users and outsjde
agency representatives.
Condu<;t fon:nal and informal training sessions.
Prepare written documentation and user$ guides for internal systems.
Deal effectively with Department Managers, City Staff and outside vendors.
Experience a.11d Training Guidelines:
Any combinati07! equivalent to experience and training that l-WJU!d pro1iide lhe required
. knowledge; skills, a:ndabilitieswoy/d be qualifying. A typical way to obtain. the knowledge,
skills, aJid abilities would be.:..
Experience:
5 years experience with increasing responsible professional work in Noye11 network
_ad.t;ninistration m1d Managemvnt Information Systems.
Education:
Equivalent to graduation from an accredited 4-year educational institution with a major
course work in Application Programmlng, Business Data Process.ing, C.ompu.tex Science, or
Management Information Systems.
Note: At the sole of the Cityi extensive, .applicable experience may be substituted
for 2 years of requited edupation.
License ()l' Certificate:
Possession of, or ability to obtain, an appropriate, valid driver's liqense.
4
Ci?y of Carmel-&y-the-Sca
fn fonnation Systems!Net\vork (continued.)
Possession of a certificate as a Certified Network Admnustrator, preferred.
Special
Essential duties require the following physlcalskil!s a/14 work environment."
Ability to sit, stand, walk, kneel crouch, stoop, squat, and lift 50 lbs.; ability to travel to
different facilities, availability for emergency on-call work durirlg non-worldng hours; abxlity
to work in a staudard office environment
Effecth'e Dnte;
Revisions E]feetiv""
March l!J97
July 1,1998
5
Ji_G-:REE.MENT
of CaxmeJ_-by-the-Sea
SYSTEMS NETWORK
THIS AGREEMENT is between the CITY OF CARMEL-BY-THE-SEA
(''CITY") and Steve Mcinchak ("EMPLOYEE") and is dated this 1st day
of July 2005. '
1. EMPLOYEE has been employed as an Information Systems Network
Manager for CITY since July 1_, l997.
2'. EMPLOYEE desires to accept the position of SYS,TEMS.
NETWORK MANAGER and continue serving CITY in that capacity.
3 . The CITY ADMINISTRATOR, as appointing p01ver, apd Steve
Mcinchak desire to agree in writing to the following terms and
conditions for employment of Information Systems Network
Manager.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
. AGREEMENT
1. DUTIES
A. CITY agrees to employ Steve Mcinchak as Information
Systems Network Manager of the City of Carmel-by-the-Sea to perform
the functions and duties sp-ecified in the ordinances and
resolutions of the City, and to perform other legally permissible
and proper duties and functions as the CITY ADMINISTRATOR may from
time to time assign.
B. EMPLOYEE shall perform his duties to the best of his
ab-ility in accordance with the highest protessional and ethical
of the profession and shall comply with all rules and
regulations establ.ished by the City,
C. EMPLOYEE shall not , engage . in any _acti vi:ty r which is or
may become a conflict. of interest prohibited by the contract, or
which may create an incompatibility of. office as defined under
california lal'>". Prior to perfonning any services under .this
Agreement and thereafterr EMPLOYEE shall complete and file
all disclosure forms required by la'v.
Page 1 of 7

c.i ty o C:ru..-mel
nwOBMAT!ON SYST.Elb-:{S 151ETiflORK M:A'NAGER
2. TEffi.l
A. This Agreement shall commence on July 1, 2005, and
continue unless terminated by either party in accordance with the
provisions set forth in Article D .. of this Agreement, or until
terminated by death ox permanent disabil'ity of EMPLOYEE.
B. EMPLOYEE agrees to remain in the exclusive employ of the
CITY during the term of this agreement. However, EMPLOYEE may
engage ln occasional teaching, writing, or consulting performed on
]i::MPLOYEW S time off so long as such activities do not either
interfere with EMPLOYEE'S performance of his duties hereunder, or
conflict with EMPLOYEE'S obligation to the CITY. _EMPLOYEE agrees
that such activities are to be subject to prior of the
CITY ADMINISTRATOR.
3 !!Ot.JRS OF WORK
A. It is recognized that EMPLOYEE must devote a great deal
of time outside normal pusiness hours to the business of the CITYr
and to that end EMPLOYEE will be allowed to take reasonable leave
time off as he deem appropriate during normal business hours.
However, it is the intent of the CITY ADMINISTRATOR that EMPLOYEE
maintain, whenever normal CITY business hours.
4. RESIGNATION AND TERMINATION
A. EMPLOYEE may resign .<3,t any time upon providing CITY
ADMINISTRATOR with at least thirty (30) days advance written notice
of the effective date of
B. CITY may at ahy time terminate EMPLOYEE
upon thirty (30} days written notice.
c. The parties recognize and a{firni that:
1) EMPLOYEE is an will" employee whose employment
may be tenninated by the CITY ADMINISTRATOR without cause or right
of .appeal; and
2) There is no e.xprei3S or iiUplied p.romi.se made to
EMPLOYEE for any form of conti:qued employment. T-his Agreement is
the sole and exclusive basis for an ernploymei'J.t relationship between
EMPLOYEE and tha CITY.
5. SEVEAANCE PAY
Page 2 of 7
EMPLOYMENT AG:I:\El511E..\f'l'
City of Carrn.el-by-the-See
SYSTEMS NElTWORK MANAG-ER
A. Except as provided in paragraph 5.B. of this Agreement,
if EMPLOYEE is terminated by the CITY ADMINISTRATOR while still
willing and able to perform the duties of Information Systems
Network Manager, CITY agrees to pay EMPLOYEE a cash payment equal
to four months the then current, salary. Said cash
payments may be paid, at the option of the EMPLOYEE in: 1) lump
sum upon date of termination; 2) lump sum on January 1 of the
calendar year following termination; or 3) fom;: equal monthly
Such payment shall release the CITY from further
obligations under this Agreement.
B. In the event EMPLOYEE is tenainatect. because of his
conviction of any felony, or any crime involving moral turpituder
or any offense involving a violation of his official ctuties or if
the CITY . ADMINISTRATOR determines that the EMPLOYEE has: 1)
misappropriated public funds; 2) public funds with his
personal funds; 3) engaged in willful corrupt conduct in office; or
4) conducted hi.:tnself in a manner to be determined as willful
conduct that constitutes misconduct according to the CITY's
personnel rules,.. the CITY shall have no obligation to continue
employment of EMPLOYEE or to pay severance as set forth in
paragraph 5.A. of this Agreement.
A. Effective July 1, 2005, the CITY agrees to pay EMPLOYEE
$96,. 864.00 in salary per annum for his. services.
B. Salary is payable in installments at the same time as other
of the CITY are paid, and subject to customary
withholding.
C. The.reafte.J:;" .and subject to an evaluation of performance on
the anniversary date hereofr the CITY ADMINISTRATOR may increase
EM:PLOYEE'S compensation without the need to amend this Agreement.
1. AUTOMOBILE
A. The CIT shall provide EMPLOYEE with a CITY vehicle or
provide for a mileage allowance as needed per the current IRS
mileage rate.
Page 3 Qf 7

o
INFORMATION SYSTEMS NETflORK N:ANli.GE::R
0. SUPPLEMENTAL
A. The CITY shall provide EMPLOYEE with the same type and
extent of benefits a-s provided to the CITY' s other
management employees as such benefits may be from
time to time except for the following:
L The CITY shall contribute an amount not lE)ss
eighty-five percent (85%) of the full premium on
behalf of the 8MPLOYEE and his qu_alified dependents
for medical insurance available through the CalPERS
CHOICE program for the term of this Agreement until
and unless otherwise amel).ded between BMPLOYEE AND
CITY.
2. The CITY shall continue t() provide dental and VJ.SJ.on
coverage through the CITY'S current self-fund
programs
1
until and unless otherwise amended between
the EMPLOYEE and the CITY.
3. EMPLOYEE shall be entitled to accrue -vacation at a
rate determined by his years of City service, subject
to the City's M1,micipal Code sections 2. 52. 625 th:cough
2. 52. p45, and 2. 52_. 655.
4. EMPLOYEE shall accrue eight ($) hours per month of
sick leaver subject to the
Code Sections 2.52.660 through 2.52.685.
5. EMRLOYEE shall receive 100 hours annual administrative
leave per fiscal year.
B. With the above exceptions all other actions taken by the
CITY ADMINISTRATOR relating to benefits for executi ire management
employees be considered actions granting the same benefits to
As used herein, benefits may includ.e but are not limited
to paid holidays, bereavement leave and general leave, iife
insurance, accidentai deat.h and disability insurance, vacation
leave sell-hack optionr employer paid deferred compensation
contributions, and participation in PERS w-ith employer paid
contributions.
Page 4 of 7
E:t...n?LOThfENT
City of
!N'FORMJ!,.:t'ION Efi"Si'E.MS NE'l'WORR:
A. CITY ADMINISTRATORr or his designee, shall evaluate
EMPLOYEE'S performance at least annually. As part of such annual
performance evaluation the CITY ADMINISTRATORr or his designee, and
EMPLOYEE shall set goals ant;l objectives for the ensuing year-
A. CITY ADMINISTRATOR agrees- to pay for reasonable CITY-
related business expenses incurred by EMPLOYEE in accordance with
CITY policy.
A. CITY shall pay such pro"fessional dues
1
;::llibscriJ?tions and
memberships in such organi4ations necessary for EMPLOYEE to
maintain professional relationsh:f.ps :(.n approp"riate national,
regional, state and local associations desirable for continued
professional growthr advancement and benefit to CITY.
12. liOTICES
A. 'Any notices by this Agreement shall be in
writing and either given in person or by first-class mail with the
post<;:lge prepaid and addressed as follows:
TO CITY::
TO EMPLOYEE:
1.3. DJ:Sl?UTE RESOLUTIOlii
Rich Guillen
City Administrator
City of city Hall
J?.O. Dra'(ler CC
Carmel-by-the-Sear CA
Steve Mcinchak
27590 Via Sereno
Carmel, CA 93923
Should either party to this Agreement bring legal action
against the other (formal judicial procee:dings, mediation. or
arbitration} the case $hall be handled in Monterey County,
California, and the party prevailing in such action shall be
entitled to a reasonable attorney's fee which shall be fixed by the
. Page 5 of 7
Eh!!?LOYJ:.m;l\rT AGREE'b!El{T
Ci.ty of
INFORMATION SYSTEMS NET!ilOffii>:
judge, mediator or arbitrator hearing the caseand such fee shall
be included in the judgment together with all'costs.
A. This Agreement has been negotiated at arm's length anct
between persons sophisticated and knowledgeable in the matters
dealt with. in this Agreement. Accordingly, any rule of law
(including California Ci.vil Code 1654) or legal decision that
would require interpretation of the ambiguities in this Agreement
against the p-arty that has drafted it is not applicable and is
hereby waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the'purposes of the
parties in this Agreement.
A.. Upon request of EMPLOYEEr and subject to the provisions
of California Government Code Sections 995.2 and 995.4, CITY shall
defend EMPLOYEE in any civil action or proceeding brought aqainst
him, tn his official or indiviqual. capacity or bothr on accoUnt of
<'Pl. ac;t or omis;Sion .in the scope of his/her employment as an
employee with CITY except for civil; criminal or administrative
action initiated by EMPLOXEE.
16. ENTI!.U!:
A. Thi.s Agreement is the final expression of the complete
agreement of the parties with respect to the matters specified
herein and supersedes all prior oral or written understandings ..
Except as herein this Agreement cannot 'be modified
except by written mutual agreement signed by the parties.
A. This Agreement is not assignable by either the CITY or
the EMPLOYEE.
A. In the that any provision of this Agreement is held
or determined to be illegal or V'oid by reason of final, non-
appealable judgment, order or decision of a court having
jurisdiction over parties, the remainder o;f the Agreement shall
Pa,ge 6 of 7
AGBEEJY.lEl\'IT
City of Ca . .rme.l-by-the-Sea. .
INFOru..ffi.TION" SYSTEMS 1.\'IETFifOR.:K MA.1ii11GE:R
remain in full force and effect unless the parts found to be void
are vlholly inseparable from the remaining portion of the Agreement.
A. This. shall be executed simultaneously in tvto
counterparts and each of which shall be deemed an but all
of which together spall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement is signed and executed and
duly held attested by the City Clerk; the CITY ADMINISTRATORr and
EMPLOYEE.
ATTBST:
CITY/0! CARMEL-BY-THE-SEA
.
CITY OF

CITY ADMINISTRATOR
Page 7 of 7
HIBIT C
January 9, 2014-
Steven Mclnchak
c/o Michelle Welsh
Stoner, Welsh & Schmidt
413 Forest Avenue
CARL \VARPillN & COl\J:PANY
NOTICE OF
REJECTION OF ClAIM
Pacific Grove, CA 939504201
Re: Insured
Date of Loss
Our File No.
: City of Carmel-by-the Sea
6/5/13
: 1875773
Dear Mr. Mcfnchak,
Carl Warren & Company is the claims administrator for the City of Carmel-by-the Sea,
relative to the above-captioned claim.
NOTICE IS HEREBY GIVEN that the claim which you presented to the City Council of
the Carmel-By-the-Sea on December 4, 2013 was rejected on Janu(:lry 7, 2014.
WARNING
Subject to certain exceptions, you have only six (6) months from the date this notice
was personally delivered or deposrted in the mail to file a court action on this claim. See
California Government Code Section 945.6. The six month time limit referred to in this
notice applies only to cla!ms or causes of action which are governed by the California
Tort Claims Act. Other causes of action, including those arising under federal law, may
have different time limitations.
You may seek the advice of an attorney of your choice in connection with this matter. If
you desire to consult an attorney, you should do so immediately.
AN EMPLOYEE-OWNED COMPANY
P. 0 . svx 3975 1 \fila/nut Creek, CA 94598
1 925-674-4660 1 800-998-4763 1 Fax: 800-956-3999
C,". LicE:nse No.
cc: Administrative Services Director
DECLARATION REGARDING MAILiNG
I, Jo Gelinas, DECLARE:
'1. I AM OVER 18 YEARS OF AGE;
2. I AM EMPlOYED BY CARL WARREN & COMPANY;
3. MY BUSINESS ADDRESS IS:
PO Box 3975
Walnut Creek, CA 94598
4. I AM NOT A PARTY TO THE WITHIN-MENTIONED PROCEEDING;
On .January 9, 20.14 I SERVE;D THE A IT ACHED NOTICE OF REJECTION OF
CLAIM ON THE CLAIMANT BY PLACING THE NOTICE IN AN ENVELOPE,
WITH US POSTAGE FULLY PREPAID, SEAlED, AND ADDRESSED AS
FDlLOWS:
Steven Mclnchak
c/o Michelle Welsh
Stoner, Welsh & Schn)idt
413 Forest Avenue
Pacific Grove, CA 93.950-4201
AND THEN BY DEPOSITING SAID IN THE US MAIL ON THAT
DATE.
l DECL E NDER PERJURY UNDER THE LAWS OF THE
STA L. o. liFORDJW?-fHAi- THE FOREGOING IS TRUE AND CORRECT
AN THA HIS CLARATION IS EXECUTED AT CONCORD, CA ON
J 14
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. Case Details
l
i:., NM128062; Mcinchak vs. City
: Carmel-by-the-Sea et al
J,:,r.,.,J
Case Information
Case
Number
GNM128062
Mclnchak vs. City of
Case Caption Carmel-by-the-Sea et
a!
Filing Date
Case Type
Filing Type
Original
Filing Date
Agency
Agency
Number
6/4/2014
Civil (General)
Petition
6/4/2014
Name I AKA
Party Last Name First
Type Name
DEF
Administrative Services
by-the-Sea
Director of
DEF
City Administrator of the City
of
DEF City of Carmel-by-the-Sea
PLF Mcinchak Steven
DEF Paul Susan
DEF Stilwell Jason
Attorney Information
Print Back
Middle Is
Name AKA
AKA
AKA
Ai:li:omey Type last Name First Name Middle Name
PLF Welsh Michelle A.
https://yvvvvv.justicepminers.monterey .comis .ca.gov/Public/JPPublic ViewCase.aspx?id=t/k Y... 7/7/2014
JS 44 (Rev. 12/12)
Cand rev (1115/13)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as reguired by law except as
provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is reqmred for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
STEVEN MCINCHAK
DEFENDANTS
CITY OF CARMEL-BY-THE-SEA, JASON STlL WELS fiTY
ADMINISTRATOR OF THE CITY OF CARMEL-BY-1 rw-SEA, SUSAN
PAUL, ADMINISTRATIVE SERVICES DIRECTOR OF THE CITY OF
CARMEL-BY-TI-IE-SEA
(b) County of Residence of First Listed Plaintiff _,M'"'o.,.n,..t"er..,ccrv_______ _ County ofResidence of First Listed Defendant ________ _
(EXCEPT !N U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LANP CONDEMNATION CASES, USE TilE LOCATION OF
THE TRACT OF LANP INVOLVED.
(c) Altomeys (Firm Name, Address, and Telephone
Michelle A Welsh (SBN 084127)
Stoner, Welsh & Schmidt
413 Forest Ave.
Pacific Grove, CA 93950-4201
T: 83l-373-l99:?; F:
Attorneys (!!Known)
Jeffrey A Dinkin (SBN 111422) I Allison E. Bums (198231)
Stradling Y occa Carlson & Rauth
800 Anacapa Street, Suite A
Santa Barbara, CA 93101
T: 808-730-6800; F: 805-730-15801
II. BASIS OF JURISDIC'I!'ION (Place an "X" in one Box Only) III. CITIZENSHIP OF PRINCII' AL PARTIES (Place 011 "X" h1 One Box for Plaintiff
0 l U.S. Government 1:8:1 3 Federal Question
(For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF
Plaintiff (U.S. Govemment Not a Pm1y) Citizen of This State 0 I 0 1 IncOiporated or Principal Place 0 4 0 4
ofBnsiness fn This State
02 U.S. Government 04 Divers icy Citizen of Another State 02 0 Incmporated and Principal Place os 05
Defendant (h1dicqte Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 03 0 Foreign Nation 06 06
Foreign Country
IV. NATUREOFSUIT

0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal28 USC 158 0 375 False Claims Act
0120Marine 0 310Airplane 0 365Personalinjury- ofProperty2!USC881 0423Withdrawal 0 400StateReapportiomnent
0130 Miller Act 0 315 Airplane Product ProductLiabiliiy 0690 Other 28 USC 157 0 410 Antitrust
0140 Negotiable Instrument Liability D 367 Health Care/ 0 430 Banks and Banking
0150 Recovery ofOvBI]layment 0 320 Assault, Libel & Pltanuaceutical 0 450 Commerce
& Enforcement ofJudgment Slander Personal Injury 0 820 Copyrights 0 460 Deportation
0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 470 Racketeer Influenced and
0 152 Recovery ofDefaulted Liability D 368 Asbestos Personal 0 840 Trademark Corrupt Organizations
StudentLoans 0 InjuryProduct 0 480ConsumerCredit
(Excludes Veterans) D 345 Marine Product Liability 0 490 Cable/Sat TV
0 153 Recovery of Oveipayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HfA (1395ff) 0 850 Securities(Commodities/
of Veteran's Benefits 0 350 Motor Vehicle D 370 Other Fraud Act 0 862Black Lung (923) Exchange
0 160 Stockltolders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 D!WC/DIWW (405(g)) 0 890 Other Statutory Actions
0 190 Other Contract Product Liability 0 380 Oilier Personal Relations 0 864 SS!D Title XVI 0 891 Agricultural Acts
0 195 Contract Product Liability 0 360 Otlter Personal Propetiy Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 893 Environmental Matters
0 196 Franchise Injury 0 385 Property Damage 0751 Family and Medical 0 895 Freedom of Information
0 362 Personal Injury- Product Liability Leave Act Act
Medical Malpractice 0 790 Other Labor Litigation 0 896 Arbitration
0 791 Employee Retirement 0 899 Administrative Procedure
0 210 Land Condemnation 0 440 Odter Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of
0220Foreclosure 0 441 Voting 0 463AlienDetainee or Defendant) AgencyDecision
0230 Rent Lease & Ejectment iJ 442 Employment 0 510 Motions to Vacate 0 8711RS-Tbird Party 0 950 Constitutionality of
0 240 TortstoLand , jj 443 Housing/ Sentence 26 USC 7609 State Statutes
0 245 Tort Product Liability Accommodations 0 530 General
0 290 All Other Real Property 0 445 Amer, w/Disabuities 0 535 Death Penaliy
Employment . Other:
0 446 Amer. w/Disabilities 0 540 Mandamus & Other
Otl1er 0 550 Civil Rights
0 44& Education 0 555 Prison Condition
0 560 Civil De!llinee-
Conditions of
Confinement
V. ORIGIN (P/acea11 "X"mOneBoxOnly)

0 462 Naturalization Application
0 465 Other Immigration
Actions
U 1 Original 12!;1 2 Removed from U 3 Remanded from U 4 Reinstated or
Reopened
U 5 Transferred from U 6 Multidistrict
Proceeding State Court Appellate Court Another Dislrict Litigation
(specify)
VI. CAUSEOF
ACTION
Cite the U.S. Civil Statute under which you are filing (Do not citejnrisdictional stat11tes u11less diversiiJ');
28U.S.C. 1331, 1441, 1446AND 1367(a)
Brief description of canse:
Plaintiff alleges Defendants' conduct is in violation of the laws and Constitution of the United States.
VII. REQUESTED J[N
COMPLAINT:
0 CHECK IF THIS IS A CLASS ACTION DEl\lAND $ CHECK YES only if demanded in complaint:
UNDER RULE 23, F.R.Cv.P. JURY DEMAND: iZJ Yes 0 No
VUI. RELATED CASE(S)
IF ANY
(See
JUDGE
:nx. DIVISIONAL ASSIGNMENT (Civil L_R. 3-2)
(Place an "X" in One Box Only)
DATE
July 7, 2014
DOCKET NUMBER
NCISCO/OAKLAND SAN JOSE () EUREKA

Notice of Removal To Federal Court 5 14 CV 03084

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